Powell v. State

• Decision Date: 04 November 1889
• Citation: 67 Miss. 119,6 So. 646
• Court: Mississippi Supreme Court
• Parties: SAM POWELL v. THE STATE

6 So. 646

67 Miss. 119

SAM POWELL v. THE STATE

Supreme Court of Mississippi

November 4, 1889

FROM the circuit court of Lauderdale county, HON. S. H. TERRAL Judge.

Appellant a negro, was convicted of the murder of his child, who died from the effects of punishment inflicted by the accused. The circumstances and manner of the infliction of the punishment are stated in the opinion of the court. Finding that the injuries were fatal the accused fled, but was arrested in another state and brought back for trial. The court appointed counsel to conduct his defense. On the trial he testified that he did not intend to kill or seriously injure the child that he inflicted the punishment at the instance of his wife and sister [the former being the child's stepmother], who claimed that the child had told lies on them; that they urged him on during the whipping. The evidence showed that he became greatly angered as the whipping progressed, and finally desisted only when forced to do so by the interference of a neighbor.

The following instructions were given on behalf of the accused:--

"1. If the jury should find the defendant guilty of murder as charged in the indictment, they may fix the punishment at imprisonment in the penitentiary for life.

"2. If, after considering all the evidence in the case and the instructions of the court, there is a probability that the grade of the defendant's crime is manslaughter and not murder, then the jury are instructed by the court that there is a reasonable doubt whether the defendant's crime for whipping his child to death is murder or manslaughter, and they should find him guilty of manslaughter.

"3. If, after reading the instructions of the court and carefully considering all the evidence in the case, the jury are not satisfied to a moral certainty and beyond all reasonable doubt which offense, murder or manslaughter, the defendant is guilty of, the jury are instructed by the court to resolve such doubt in favor of the defendant and find him guilty of the lesser offense, manslaughter, and not murder.

"5. The court instructs the jury that in all criminal cases before conviction can be had, the jury must be satisfied beyond a reasonable doubt that the defendant is guilty in a manner and form as charged in the indictment.

"6. The father has the legal right to whip his child to enforce obedience to the father's authority, and will not be punished therefor unless he exceeds the bounds of due moderation in the manner, the instrument used, or the degree of the correction, and if he exceeds the bounds of due moderation he will be adjudged guilty of murder or manslaughter, according to the circumstances.

"8. If there is any fact; or circumstance in the case, proof of which is necessary to enable the jury to determine whether the defendant is guilty of murder or manslaughter, and the evidence touching such fact or circumstance is not so convincing as clearly to prove the same, the jury should find the defendant guilty of manslaughter and not murder."

Some of the instructions for the state were objected to, and some of those asked by the defendant were modified, and the defendant excepted. The action of the court below in regard to the instructions sufficiently appears in the opinion of the court.

After conviction, defendant moved for a new trial. Motion overruled; sentence of death; defendant appeals.

Affirmed.

W. N. Ethridge, for appellant.

1. The court erred in so instructing the jury as to prevent a conviction of manslaughter only. The second instruction of the state should not have been given. No deadly weapon was used and there was no former grudge; hence, there was no malice and the defendant was not guilty of murder.

2. Defendant was entitled to all the probabilities that the offense was manslaughter instead of murder. The sixteenth instruction for defendant, which was refused, was copied from Sackett's Instructions to Juries, p. 519. See, also, 2 Whar. Cr. L., §§ 933, 942.

3. A juror has no idea of involuntary manslaughter, committed in the exercise of a lawful act in an unlawful manner. Therefore instruction fifteen for defendant, defining involuntary manslaughter should have been given. There was no such provocation as would reduce the killing to manslaughter on account of the heat of passion, and for this reason it was especially important for the accused to have involuntary manslaughter defined to the jury.

4. It is submitted that the court erred in refusing to give instruction thirteen on behalf of the defendant as to conflicts in the evidence. There were such conflicts and the jury should have been told that the defendant was entitled to the benefit of any doubt created by them.

T. M. Miller, attorney-general, for the state.

1. The evidence fully sustains the verdict. If murder cannot be predicated of the facts shown, a parent cannot murder his child so long as he pretends that he was inflicting chastisement only.

2. No fault can be found with the state's instructions. Malice may be presumed from circumstances of barbarity indicating a depraved heart.

If parents, masters and others having authority to correct exceed the bounds of moderation, either in the measure of punishment or the instrument used, and...